. NMT04-T0585
Volume IV · Page 585
| Graf took over his position. Although Graf
was statistically with Einsatzkommando 6 for thirteen months he served also for
a short period with the commander of the Security Police and the SD in Stalino.
For five weeks he was detailed to the liaison office of AOK 17; he was on
furlough for five weeks and was ill and on sick leave for about three months.
Thus about five months of thirteen months' incumbency with the Einsatzkommando
were spent away from the unit. During the eight months he actually served with
the organization, Graf never once acted as commander of it or any of its
subdivisions. In September 1942 Graf was assigned the command of a sub-Kommando, but he refused to accept the assignment. Because of this refusal he was arrested and placed in custody for disciplinary action. Eventually the disciplinary proceedings were dropped and he was sent back to Germany. The defendant, like every other defendant in Court, is presumed to be innocent until proved guilty. The prosecution has introduced reports showing that Einsatzkommando 6 engaged in various executive operations. It is not questioned that the Kommando did participate in liquidating operations and, despite the defendant's denial, it is not to be doubted that he knew of at least some of these executions. However, more than mere knowledge of illegality or crime is required in order to establish guilt under counts one and two of the indictment. Furthermore, in view of his various absences from the Kommando it cannot be assumed that his membership in the organization of itself proves his presence at and knowledge of any particular executive operation, without there being proof of that fact. In view of Graf's noncommissioned officer's status in an organization where rank was of vital importance, it is not to be assumed that the commander of the organization would take Graf into his confidence in planning an operation. As a noncommissioned officer he would not participate in officers' conferences. Since there is no evidence in the record that Graf was at any time in a position to protest against the illegal actions of others, he cannot be found guilty as an accessory under counts one and two of the indictment. Since there is no proof that he personally participated in any of the executions or their planning, he may not be held as a principal. Insofar as counts one and two against the defendant are concerned the Tribunal concludes that the evidence does not rise to that degree of proof required by the principles of justice and the concomitant guarantees of correct procedure to warrant a finding of guilt beyond a reasonable doubt, and thus finds him not guilty. The defendant joined the SS in 1933 and in 1936 was expelled because of lack of attendance and general indifference to the or- […ganization] |
